Jury Award Reformers Tackle Frontier-era Arizona Law

June 22, 1986|By Alex Beasley of The Sentinel Staff

The tidal wave of civil negligence reform that is sweeping the country has run into a stubborn opponent in the Arizona Constitution, a stronghold of early settlers' individualism and belief in the jury system.

As a result, doctors and their coalition of industry and small businesses have been forced to take the long way around -- a constitutional initiative -- in their attempt to change the state's civil negligence laws. By July 3, the doctor-led Citizens For Fair and Sensible Liability Law must turn in at least 108,000 signatures to state officials to qualify the initiative for the November ballot.

Because of the constitutional impediment and its strong statement for individual rights, observers on both sides say if civil negligence reform passes in Arizona it is likely to succeed anywhere.

In no uncertain terms, the constitution prohibits any limitations on the right to recover damages for injuries and the amount that a jury can award. Only Kentucky is believed to have as strict a document.

''Arizona is one of the most conservative states in the country. We're talking about traditional conservative constitutional freedoms,'' said Bob Begam, a Phoenix attorney and adviser to a group opposing the coalition.

''There was a very healthy distrust of the Eastern establishment and the mining companies in 1912. When the constitution was drafted, it was intended to protect the ordinary citizens,'' explained Arizona State University professor Heinz Hink, a legislator, historian and co-author of a book on the Arizona Constitution.

Since it was drafted in 1912, the constitution has been amended more than 100 times, but this is the first attempt to alter the provision on victims' rights.

A spokesman for the Arizona Medical Association concedes the civil negligence reform movement faces an extra challenge in that state but believes the people are ready for change.

''It adds an extra step to the effort. We

just can't go to the Legislature and say we have a problem,'' said Susan Fuchs, director of communications for ArMA. ''Among the pioneers here, there was a tremendous concern for the rights of the individuals. You have to be pretty tough to live here. The harsh, tough environment is intimidating.

''But I think you are seeing a different kind of society today than 75 years ago. People do see a problem and want something done about it.''

The problem, as the Arizona coalition sees it, is the same being touted by similar groups in other states: a litigation explosion that is driving up the cost of insurance and in some cases making it unavailable.

Meanwhile, the coalition is throwing big money into the fight.

It has hired a Phoenix public relations firm and has a budget estimated between $3 million and $6 million. Opponents are expected to throw about $4 million against the effort.

If voters approve the initiative, the coalition will ask the Legislature for a series of reforms, such as a limit on damages for pain and suffering, an end to punitive damages, limits on attorney contingent fees and abolition of a doctrine that allows an injured person to collect all damages from one negligent party if the others are unable to pay.

The coalition should have no trouble getting what it wants from the Legislature if the constitution is changed.

Last month Arizona lawmakers passed a legislative package, subject to constitutional approval, that granted most of what the coalition wants. It was vetoed by Gov. Bruce Babbitt. But Babbitt has announced he won't be running again in November.

Fuchs said the coalition does not see the movement as limiting individual rights but rather protecting them while making the legal system more sensible. Not all citizens see eye to eye with the coalition.

Mothers Against Drunk Drivers believes the changes will limit a person's ability to collect damages if they are injured by a drunken driver.

''I'm not sticking up for the trial lawyers, but when a jury of twelve people decides someone is at fault and awards a verdict, that should stand. It's a verdict of 12 people, not the opinion of one attorney,'' said Susan Hyland, a spokeswoman for the Phoenix chapter of MADD.

Begam's group, Fairness and Affordability in Insurance Reform, is patterning its fight along the lines of the successful challenge by Florida trial lawyers two years ago to Reason 84, an attempt by the state's physicians to rewrite the Florida Constitution's provisions on malpractice and liability. Florida's Supreme Court ruled Reason 84 unconstitutional on the grounds that the initiative dealt with more than one subject and was misleading.

Begam, who helped with the Florida effort as chairman of the political action committee of the Association of Trial Lawyers of America, said he will file an identical challenge in Arizona immediately after the signatures are certified with the state.

''They've got to tell people they are taking away constitutional rights. They make it sound like they are giving new rights,'' he complained.